Dirt Patrol

Developers complain topsoil runoff rules raise lot costs

Land developers and home builders say they are being forced to pay the price for clean water.

At issue is vague language in the federal Clean Water Act that requires control of groundwater runoff at development sites combined with few restrictions on farmers, where developers and a raft of studies say the real problem lies in the delivery of fertilizer-soaked topsoil into watersheds.

“Eventually, farmers are going to find out what it is like to be us,” said Rick Tollakson, president and CEO of Hubbell Realty Co. The “us” he refers to is developers such as Hubbell that have labored under a state rule that went into effect Oct. 1, 2012.

The rule was intended to add some substance to a federal requirement that land developers and home builders “minimize soil compaction and, unless infeasible, preserve topsoil.”

In order to provide some definitive language to the topsoil rule, the Iowa Department of Natural Resources, after consulting with developers, decided that 4 inches of topsoil must be preserved at development and building sites.

You’ll pardon Tollakson and home builders such as Ted Grob of Savannah Homes if they feel as though they are chasing their tails – and running up costs – to meet the rule.

“It’s just about as silly as things can be,” Grob said. “It’s an unintended consequence I’m not sure anybody’s thought about. When you deal with the green culture, their motives are genuine and real, but the problem is that 75 percent of runoff is caused by agriculture.”

Here’s the way it works: Land developers scrape ground to clear the way for streets and sidewalks and building pads. They stockpile the dirt, only to replace it when a local government approves the site for lots that can be sold.

Home builders buy the lots, clear ground again to construct houses on the lots and return the topsoil – 4 inches of it – when the houses
are completed.

As a rule of thumb, Tollakson said it costs about $4,000 to develop a lot. The topsoil rule drives that cost to about $5,200.

“It’s a pressing issue for the developers right now,” said attorney Charles Becker, an environmental law specialist with Belin McCormick P.C.

Developers are quick to point out that many studies show that their projects account for about 1 percent of the storm water runoff that drains eventually into watersheds, rivers and lakes.

They are just as quick to note that agriculture is exempted from most provisions of the Clean Water Act, unless they are clearing ground for new structures, such as livestock confinement buildings.

The Iowa agriculture community, such as Iowa Farm Bureau Federation President Craig Hill, has urged farmers to take volunatary measures to control runoff.

And the Iowa Department of Agriculture and Land Stewardship has reported a strong response to a program introduced this year in which the state will pay for half of the cost of water conservation measures on farms, including the planting of cover crops and other steps that are designed to preserve soil and limit the amount of farm fertilizers that enter watersheds.

Meanwhile, the Iowa Policy Project recently released a report that promoted urban wetlands as a way to control runoff.

The Iowa topsoil rule was adopted as part of the five-year renewal of permits that developers must obtain to show that they are controlling runoff at their construction sites.

Those measures, such as installing culverts, can run into the millions of dollars.

Adding a requirement that can add $1,200 to lot development is another expense that developers say is levied, unfairly, against them.

Creighton Cox, executive officer of the Home Builders Association of Greater Des Moines, has participated in a series of meetings intended to persuade state environmental officials to alter the rule.

Those meetings are expected to wrap up this month, said the DNR’s Joe Griffin, but no one is predicting the outcome.

Cox said that one alternative to the topsoil rule would be to require developers to expand the storm water retention basins that are a required component of developments.

Regulators would achieve their goal of having the soil act as a sponge for runoff and developers would move dirt once, rather than four times, as happens under the current regulation.

Although developers were consulted on adoption of the topsoil rule, few anticipated its steep costs.

“I don’t think anybody anticipated that the cost would be as great as it is,” said environmental lawyer Becker.

Another solution might be to return to the generic language approved by federal regulators and allow individual municipalities to determine how to apply the topsoil requirement in their communities, he said.

“Then you would end up with 15 definitions, but that might be better than what we have right now,” Becker said.

Tollakson mentions his company’s conservation communities, with their water-absorbing plantings of native grasses and wildflowers, and points out that scraping away topsoil, stockpiling it, then spreading it again at a development site leads to more soil compaction – and more runoff.

“It’s still going to shift water, almost like concrete,” he said.

Tollakson, like most developers, looks to farm fields upstream from Greater Des Moines, to isolate the principal contributor to runoff. In time, farmers will fall under restrictions similar to those applied to developers unless they take serious action.

“There are a lot of farmers that are doing a great job,” Becker said. “But you don’t need too many who aren’t to cause a big problem. … On the other hand, we are an ag state. Are you really going to impose expenses that would be staggering?”